A Corporate Veto on Health Policy? Global Constitutionalism and Investor-State Dispute Settlement

TY - JOUR

T1 - A Corporate Veto on Health Policy?

T2 - Global Constitutionalism and Investor-State Dispute Settlement

AU - Hawkins, Benjamin

AU - Holden, Chris

N1 - © 2016, Duke University Press. This is an author-produced version of the published paper. Uploaded in accordance with the publisher’s self-archiving policy. Further copying may not be permitted; contact the publisher for details

PY - 2016/10/1

Y1 - 2016/10/1

N2 - The importance of trade and investment agreements for health is now widely acknowledged in the literature, with much attention now focused on the impact of investor-state dispute settlement (ISDS) mechanisms. However, much of the analysis of such agreements in the health field remains largely descriptive. We theorize the implications of ISDS mechanisms for health policy by integrating the concept of global constitutionalism with veto point theory. It is argued that attempts to constitutionalize investment law, through a proliferation of International Investment Agreements (IIAs), has created a series of new veto points at which corporations may seek to block new policies aimed at protecting or enhancing public health. The multiplicity of new veto points in this global "spaghetti bowl" of IIAs creates opportunities for corporations to venue shop; that is, to exploit the agreements, and associated veto points, through which they are most likely to succeed in blocking or deterring new regulation. These concepts are illustrated with reference to two case studies of investor-state disputes involving a transnational tobacco company, but the implications of the analysis are of equal relevance for a range of other industries and health issues.

AB - The importance of trade and investment agreements for health is now widely acknowledged in the literature, with much attention now focused on the impact of investor-state dispute settlement (ISDS) mechanisms. However, much of the analysis of such agreements in the health field remains largely descriptive. We theorize the implications of ISDS mechanisms for health policy by integrating the concept of global constitutionalism with veto point theory. It is argued that attempts to constitutionalize investment law, through a proliferation of International Investment Agreements (IIAs), has created a series of new veto points at which corporations may seek to block new policies aimed at protecting or enhancing public health. The multiplicity of new veto points in this global "spaghetti bowl" of IIAs creates opportunities for corporations to venue shop; that is, to exploit the agreements, and associated veto points, through which they are most likely to succeed in blocking or deterring new regulation. These concepts are illustrated with reference to two case studies of investor-state disputes involving a transnational tobacco company, but the implications of the analysis are of equal relevance for a range of other industries and health issues.

KW - investor–state dispute settlement; bilateral investment treaties; tobacco control; tobacco industry; veto points; veto players; global constitutionalism

KW - Tobacco control

KW - Tobacco industry

KW - Bilateral investment treaties

KW - Investor-state dispute settlement

KW - Veto players

KW - Global constitutionalism

KW - Veto points

UR - http://www.scopus.com/inward/record.url?scp=84990202613&partnerID=8YFLogxK

U2 - 10.1215/03616878-3632203

DO - 10.1215/03616878-3632203

M3 - Article

C2 - 27256810

SN - 0361-6878

VL - 41

SP - 969

EP - 995

JO - Journal of health politics policy and law

JF - Journal of health politics policy and law

IS - 5

ER -